Coleman v. . Mercer

49 S.E.2d 405, 229 N.C. 245, 1948 N.C. LEXIS 455

• Court: Supreme Court of North Carolina
• Decided: September 22, 1948
• Status: Published

Opinion

Stacy, C. J.

The question for decision is the sufficiency of the evidence to carry the case to the jury as against the defendant, W. II. Mercer.

Without elaborating or setting out in detail the different matters debated on brief, we think the liability of W. II. Mercer for plaintiffs’ claim belongs to the jury on the evidence disclosed by the record—if not on the theory of partnership, then on his specific agreement.

The defendants agreed to take over the assets of the Farmville Building Supply Company, continue the business in their new trade name, and pay the accounts then outstanding. Plaintiffs’ claim was among these outstanding accounts. Hence, there is shown W. II. Mercer’s specific agreement to assume joint liability for the claim in suit, and this assumption is supported by a valuable consideration. “A third party may maintain an action on a contract made for his benefit.” Boone v. Boone (6th syllabus), 217 N. C., 722, 9 S. E. (2d), 383. See Gorrell v. Water Supply Co., 124 N. C., 328, 32 S. E., 720.

There was error in exculpating W. H. Mercer from liability on the record.

Reversed.